Mahany & Ertl

by Brian Mahany

An allocution is a criminal defendant’s opportunity to address the court prior to the imposition of sentence.  Although always important, the defendant’s allocution becomes critical if there is no binding plea agreement in place.

Most cases resolve by plea agreements - the prosecutor and the defendant (through his lawyer) discuss the relative strengths and weaknesses of the case. After considerable discussion, the client often agrees to plead guilty and take a reduced sentence and the prosecutor is assured of a win.  When there is an agreement by both sides, the client’s allocution takes on secondary importance.

Allocutions in cases where there is no agreement in place or when the defendant has been found guilty after a trial become critical.  Generally, an allocution  involves the defendant standing, addressing the court (and sometimes victims), expressing remorse and accepting responsibility for his actions.  If the court feels the defendant is sincere and genuinely remorseful, the sentence is often more lenient than it might otherwise be.  For that reason, good criminal defense lawyers spend considerable time helping defendants craft an effective allocution in their own words.

Even good lawyers still worry about what a client might say, however.  I have watched clients lie, blame others, argue with judges and express remorse at being caught (but not for their actions).  Not great strategies.  Most clients do well, however, and genuinely are sorry for their actions.

Recently I had a sentencing in an out-of-town case. The client was on parole and had plead guilty to committing a robbery in which someone was badly injured.  The prosecutor sought 3 years.  The client fully accepted responsibility and was ready to accept any sentence of the court.  His local counsel and I argued for a 1 year sentence. The judge was having a difficult time accepting our recommendation. That is until our client stood and addressed the court. With no need of notes or coaching, the client told the court how sorry he was. In fact, he thanked the police for catching him.

I can’t do justice to his words but the courtroom was silent and there wasn’t a doubt in anyone’s mind that this gentlemen was not only devastated by his actions but fully accepted responsibility. The court then knew what I knew; this was a man not likely to be back.  He understood the consequences of his actions and was eager to make amends and get help.  He was sentenced to 1 year in prison.

I have been lucky in my 26 years of practice that none of my clients have ever performed poorly during their allocution. Lawyers I have worked with have not been so lucky. My present partner, Christopher Ertl, had a client lie to a judge and a former partner had a client that threatened to kill the sentencing judge. Not a winning strategy. My worst experiences have been clients that have become tongue tied or suffered the opposite fate - they couldn’t stop talking.

I realized how lucky I have been after reading the fate of pastor Rodney McGill in Martin County, Florida.  McGill was convicted of real estate fraud.

Did McGill apologize to the court, his family and the victims of his crime? No.  According to press reports, he exclaimed, “Jesus, Jesus, Jesus for every witness called against me, I pray cancer in their lives, lupus, brain tumor, pancreatic cancer.”  When asked to stand for sentencing, McGill turned his back on the judge. Again, not a winning strategy.

The result? McGill received a maximum 20 year sentence. His wife, who was somewhat remorseful, received the mandatory minimum sentence of 10 years. Allocutions do matter.

POST SCRIPT -  In researching this story, I learned that McGill was just charged again - this time with attempting to defraud someone of $40,000 while incarcerated.  Clearly, no remorse at all.

At Mahany & Ertl, we work closely with our clients during every stage of a criminal case. From the initial investigation, through indictment, bail hearing, aggressive motion practice, trial and if necessary, sentencing the lawyers at Mahany & Ertl will be at your side. Ready at every juncture and able to answer your questions.  If you or someone you know has been arrested or accused of a crime, give us a call.  From our offices in Milwaukee, we handle criminal cases anywhere in Wisconsin. Brian Mahany & Chris Ertl have handled white collar criminal matters all over the nation including Texas, Chicago, Boston, Seattle, Florida, Pennsylvania, New Jersey, and Nashville.